Harwell seeks AG opinion on charter school law funding issue

Aug. 27, 2013

House Speaker Beth Harwell

Written by

Joey Garrison

The Tennessean

Republican House Speaker Beth Harwell says she’s seeking the opinion of the state’s attorney general on questions posed by a Metro Nashville Public Schools attorney on the constitutionality of the state’s charter school law.

“We’re in the process of that now,” she said.

The Tennessean reported last week on a legal memorandum that Washington, D.C., attorney John Borkowski drafted for MNPS officials. Borkowski concluded that Tennessee’s decade-old charter law “seems to impose increased costs on local governments with no offsetting subsidy from the state,” which he said violates the Tennessee Constitution.

Harwell, a proponent of publicly financed, privately led charters who helped draft that 2002 law, confirmed she had seen the legal memo.

“I’ll just say it’s disappointing,” Harwell said, noting that four of Metro’s top middle schools in student achievement gains this past year were charters.

“I don’t understand the efforts to deny this to children who definitely need this option,” she said. “I think it sends the wrong message to potential charter schools to relocate in this area for there to be this constant turmoil.”

Borkowski’s legal opinion provides a potential basis for Metro and local districts of the state’s largest cities to mount a legal challenge of the law that allowed charters to open in Tennessee.

Metro Director of Schools Jesse Register, who has argued that the increase of charters in Nashville is burdening the district financially, has shared the memo with his school board and a lobbying organization that represents the state’s five largest school districts. Whether Metro litigates would be up to the school board, though he did say that he can see how the constitutional questions are applicable.

A section of the Tennessee Constitution says that no law shall impose “increased expenditure requirements on cities or counties” unless the Tennessee General Assembly ensures the state shares those costs.

Under the state’s charter school funding formula, the entire combined state and local per-pupil dollar amount follows students to their new charter schools. Local districts are left covering the existing fixed costs without any state subsidy, according to Borkowski.

The majority of the legal memo is focused on possible challenges to a proposal that would hand the state new power to authorize new charters. It also questions the equity of the state’s Basic Education Program funding formula for all public schools.